Appeals Court Gives Group Second Chance To Fight Florida Development

Swampland in Collier County, FL. (Source: Flickr/Jimmy Emerson.)

When the Conservancy of Southwest Florida challenged a large development in Collier County in 2020, it came armed with evidence. But it didn’t focus on threats to the endangered Florida panther, which has seen increased mortality as suburban-style development encroaches on its habitat. Instead, the Conservancy did the math. 

Collier County’s Land Development Code says all new developments must be “planned or designed to be fiscally neutral or positive.” Rivergrass Village, a proposed development on rural lands in one of the fastest-growing counties in Florida, would add up to 2,500 homes on 1,000 acres. A detailed analysis of the developer’s plans showed the county’s expenses and liabilities, particularly for water and roads, would greatly exceed what it was collecting in impact fees from the developer, Collier Enterprises. 

The Conservancy presented these arguments in court, and was dismayed when it lost its initial round, with a judge’s ruling that claimed only a very limited portion of a county comprehensive plan can be challenged. 

But the Conservancy didn’t give up, filing an appeal to the lower court’s ruling. In late 2022, a Florida appeals court decided in the Conservancy’s favor, ruling that the lower-court judge had improperly limited what aspects of the county comprehensive plan the claimants could argue and returning the case for further action.

“The Conservancy of Southwest Florida is very pleased that the appeals court affirmed our legal right, under Florida’s Community Planning Act, to bring forth claims against Rivergrass Village based on a significant cost burden to taxpayers and serious traffic issues,” says April Olson, senior environmental planning specialist for the Conservancy. 

Olson says the Conservancy is now “prepared to show at trial how Rivergrass fails to comply with the law and will adversely impact the community and the people of Collier County.”

More significantly, the ruling may also have expanded the scope of what can be challenged in Florida courts. Previously, the only issues that could be considered for action against a proposed development that failed to comply with a comprehensive plan were density and use. The Conservancy argued that fiscal neutrality and traffic were vital issues, and the appeals court agreed.

This could theoretically enable other citizens, nonprofits, and coalitions to challenge noncompliant plans in their counties and communities. But Olson offers two major caveats. 

“Although our case should encourage similar legal challenges from other citizens/organizations, they may not have the financial strength to endure such a challenge,” says Olson, noting the relative size and financial strength of the Conservancy, plus the substantial time and cost it has already invested.

An even greater impediment comes from a 2019 Florida law that forces any group that challenges a comprehensive plan and loses to bear the legal costs for both sides. Olson said that fee-shifting provision has had a chilling effect on potential challenges and that the Conservancy is part of a legal challenge to have the law declared unconstitutional. 

 Joe Minicozzi of Urban3, a consulting firm that specializes in assessing the financial health of local governments, helped prepare supporting materials and analysis for the Conservancy’s court challenge. Using figures from the developer’s application and the county’s own engineering projections, Minicozzi estimates the county would incur tens of millions of dollars of cost and liability just for water and roads, far exceeding the impact fees it would collect. This excludes any other vital public services such as police and fire stations. The successful appeal will give this analysis another day in court. 

Urban3 also prepared a map comparing the dimensions of the proposed development with the downtown core of Naples. It provides a stark visual cue that an area of dispersed single-family homes will never provide the tax base of a mixed-use urban form with homes, retail, and service businesses. 

In a curious twist, Minicozzi notes that “Florida has some of the best planning regulations in the country,” and says the issue is the state repeatedly failing to adhere to its own rules and standards. Strong Towns Editor-in-Chief Daniel Herriges wrote an extensive series about land use in Collier County that documents this pattern.

Strong Towns filed a brief in the case supporting the Conservancy’s efforts to fight the irresponsible development pattern that threatens the viability of so many North American cities. Olson believes that support helped: “As an esteemed national organization committed to improving the fiscal strength of cities and towns across America, the Conservancy believes that Strong Towns’ amicus brief was a key factor in elevating the importance of our case in the eyes of the appellate judges.”

With several more proposed developments in eastern Collier County that rely on similar plans and projections, the ultimate outcome of this case could play a significant role in whether Florida will backtrack from decades of irresponsible planning.

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